I.
BACKGROUND

1. On April 26, 1999, the Inter-American Commission on Human
Rights (“the IACHR” or “the Inter-American Commission”) received a
request for precautionary measures presented by the Center for Justice
and International Law
(“CEJIL”) and the Legal Clinic for Public Interest Actions of the Diego
Portales University in Chile (“PIA Clinic”) on behalf of thirty persons[2]
whose right to receive information was alleged to be endangered as a
result of the seizure, by judicial order, of a book published that day
called “El Libro Negro de la Justicia Chilena” [The Black Book of
Chilean Justice] (hereinafter “The Black Book”). On June 30, 1999, the
Commission received a request on behalf of Alejandra Marcela Matus Acuña,
author of the above mentioned book, represented by lawyer Jean Pierre
Matus Acuña, applying for precautionary measures in her favor.

2.On April 28, 1999, IACHR received a petition from the Association of
Attorneys for Public Freedoms in Chile (“AALP”) on behalf of 5 Chilean
lawyers, [3]
in which is alleged that the confiscation of “The Black Book”
constitutes an arbitrary and unlawful measure in violation of Articles 1
(1), 2, and 13 of the American Convention on Human Rights, and requests
the IACHR to establish the international responsibility of the Republic
of Chile (“Chilean State” or “the State”). On October 6, 1999, CEJIL
and the PIA Clinic together presented a petition alleging the violation
of the rights to freedom of expression of Alejandra Marcela Matus Acuña
and of all members of society (Article 13), by the prior censorship of
“The Black Book of Chilean Justice”, as well as the violation of the
right of the above journalist to property (Article 21), because she was
deprived by judicial decision of the earnings that were due to her as a
result of the contract she signed with Editorial Planeta.

3. The
Chilean State did not contest the facts of the case. It reported that
the two owners of Editorial Planeta were freed two days after their
arrest and their case dismissed. It stated that no arrest warrants were
pending against Alejandra Matus and that a draft law had been drawn up
to modify the Law of State Securitywhich it claimed would
rescind those norms that restrict freedom of expression. Finally, the
State claimed that the intellectual ownership of the journalist of her
book is not in contention.

4. On
May 4, 2000, the Commission decided to process the petitions and to open
case 12.142. On October 2, 2000, having established the basis of the
proceedings, the Commission approved Report 55/00 on admissibility in
which it determined that it had competence to evaluate the merits of the
case and that the petition complied with the requisites for
admissibility established in Article 46 of the American Convention.
Hereinafter, in reference to the position of the petitioners, the IACHR
will outline the allegations made by the representatives of the
journalist Matus Acuña, and where relevant, in the other communications
it has received.

5. The
IACHR concludes in this report that the “Black Book of Chilean Justice”,
written by Mrs. Alejandra Marcela Matus Acuña, was impounded by judicial
order and its circulation prohibited for more than two years. It
concludes furthermore that Mrs. Matus Acuña was subjected to a judicial
process that forced her to leave her country in order to avoid being
imprisoned. It also states that Chilean society was deprived of its
right to information. The Commission concludes that the right to freedom
of expression and the right to property were not respected. The facts
established in the present report constitute violations of Articles 13
and 21 of the American Convention, all of which is in violation of the
duty to respect and protect rights enshrined in Article 1(1) and the
duty to give effect in domestic law to the same Convention (Article 2).

II.
PROCEEDINGS AFTER THE ADMISSIBILITY REPORT

6. In
its Report 55/00, the Commission put itself at the disposal of the
parties in order to achieve a friendly settlement in accordance with the
principles enshrined in the American Convention, and granted the parties
a period of 30 days in which to present their comments.

7. On
November 9, 2000, the petitioners expressed their wish to submit the
petition to a procedure for friendly settlement and proposed an outline
of an agreement. Specifically, they requested that the Chilean State
should commit itself to implementing within six months the legislative
changes necessary to bring domestic law into line with the rights
protected by the American Convention. For her part, Mrs. Matus Acuña
would renounce all compensation for damages resulting from the violation
of her rights and her lawyers would renounce any right to claim fees.

8.
This communication was transmitted to the State on November 13, 2000,
with a period of 30 days in which to reply. On December 18, 2000, the
State requested an extension of 30 days, which request was granted.

9. On
January 23, 2001, the petitioners requested that the friendly settlement
process should be ended and that the Commission should continue with the
proceedings necessary for issuing the report on the merits of the case.
They claimed, basically, that “the Chilean State has not demonstrated a
willingness to reach a friendly settlement in this case based on respect
for human rights, as can be seen from …the persistent insistence of its
representatives to this Commission on requesting extensions merely in
order to delay proceedings, and has not yet even complied with the
request for urgent protection measures for my client that were ordered
by the Commission more than a year ago.” On January 24, 2001, the
Commission communicated to the State that the petitioners had decided to
abandon the friendly settlement process.

10. On
February 2, 2001, the government presented its observations on the
extended allegations made by the petitioners on June 14, 2000. On
February 6, 2001, this response was transmitted to the petitioners, who,
in their communication of April 25, 2001, stated they had no comments.

11. By
note received on September 24, 2001, the petitioners requested that the
corresponding report on the merits should be issued. They stated that
the Chilean State had repealed the clauses of the law of State Security
that had provided the basis for the criminal case against Alejandra
Matus Acuña. The violations of her human rights, however, had not been
remedied.

12. On
October 2, 2001, the IACHR transmitted this communication to the State.
At the same time, it requested the petitioners to present their
additional observations on the merits of the case, allowing, for this
purpose, a period of two months. On November 29, 2001, the IACHR
repeated its request to the petitioners for information. On December 2,
2001, the petitioners sent their observations. The following day these
were transmitted to the State, which was given two months to reply. On
February 6, 2002, the State requested an extension, which was granted
for a further month as from February 14. The State, to date, has not yet
presented its observations on the merits of the case.

III.
POSITIONS OF THE PARTIES

1.
The petitioners

13. Mrs.
Alejandra Marcela Matus Acuña alleges that the Chilean State has
violated her right to freedom of expression, enshrined in Article 13 of
the American Convention, as well as her right to property guaranteed in
Article 21 of the same Convention. Additionally, the Association of
Attorneys for Public Freedoms in Chile, the Center for Justice and
International Law, and the Legal Clinic for Public Interest Actions of
the Diego Portales University in Chile claim that a broad interpretation
of the concept to the right to freedom of expression should be applied
to this case and they allege that the Chilean State has also infringed
the right to access to information of the persons named in their
petitions.

14. The
petitioners allege that the Chilean State has violated the rights of
Marcela Matus Acuña to freedom of expression and to property and that
“in spite of the legal modifications introduced by the Chilean
government in order to put an end to the violations of human rights
denounced in this case, the violations have continued.” They claim that
“it was only finally possible to remedy the unlawful situation which had
existed for more than two years when Congress passed Law 19.733 and it
was published as law and revoked the provisions that provided the basis
for the criminal action that gave rise to this rights violation [and]
almost a further six months were needed for the procedures needed to
bring an end to the confiscation that had been decreed.” The petitioners
also claim that the confiscation prevented the marketing of the book and
so “deprived the author of the legitimate enjoyment of those dues
deriving from the sale of her work.” Furthermore, they state that “no
claim is made for the violation of the right of property of Editorial
Planeta with regard to specific physical goods (the books themselves),
but for the objective fact of having prevented the sale of an
intellectual work, and consequently, the enjoyment of the right to its
intellectual property by the seizure of the physical goods and by the
existence of an order of seizure which made it judicially impossible to
replace the books seized from the market.”

15.Furthermore, they claim that “Chile continues to have in force a
large number of laws that operate like “laws of contempt” and sanction
public criticism of democracy…such as: Articles 263 and 264 of the
Criminal Code, and Article 284 of the Code of Military Justice. These
laws, which are also subject to the Law of State Security in their
proceedings, are still “available” to the authorities and allow them to
take legal action against either journalist Alejandra Matus Acuña or any
other person who might publicly criticize government authorities.”

16. They
claim that “the nature and gravity of the violation of the right to
freedom of expression…which persisted for more than two and a half
years, in addition to the existence of other legal provisions that
allowed the authorities to take action against her or against any other
person who might openly criticize the government or its employees, make
it necessary for there to be a declaration by this Commission and the
Inter-American Court of Human Rights to ensure that similar events do
not reoccur in Chile or in other countries that are signatories to the
Convention, and to make good as far as possible the damage done to the
journalist Alejandra Marcela Matus Acuña.”

2.
The State

17. In
its report, the State indicated the existence of a draft law that would
“define public order crimes and the authority of courts to seize books
or texts, in crimes against state security.” Having referred to the
requests for precautionary measures, the State claims that although Mrs.
Matus had been declared in contempt because she did not appear before
the judge, no order was issued for her arrest.

18. It
admits that Article 6 b) of the Law of State Security, and Articles 263,
264, and 265 of the Penal Code “infringe freedom of expression and
thought, by introducing distortions of the right according to the
American Convention on Human Rights which is binding on the Chilean
State.” It claims, however, that the State has not failed in its
international obligations because “of course, the will to rescind or
modify said provisions is a demonstrable decision to comply which the
provisions of Article 2 of the Convention concerning the adoption of
those legislative measures as may be necessary to give effect to the
rights and freedoms defined in the Convention.”

19.
Furthermore, the State denies any violation of the right to property. It
explains that the confiscation was imposed simply as a precautionary
measure given that circulating the book could have constituted a crime
within the terms of the Law of State Security. Therefore, confiscation
did not amount to a denial of the intellectual ownership or the
proprietary equity of the author of her work. However, the State claims
that the right to intellectual ownership is not defined in the American
Convention. Similarly, it claims that the seized books were not the
“property” of the author of the written work, but of the publishing
company that was trading them in the market.

IV.
FACTS

20. The
different presentations undertaken in this case indicate that on April
13, 1999, the book titled “The Black Book of Chilean Justice” was
released in Chile, written by the journalist Alejandra Matus Acuña, and
published by the Chilean publishing company, Editorial Planeta.

21. On
the same day, the Supreme Court judge, Mr. Servando Jordán López,
brought proceedings against the author and the publishing house before
the Court of Appeal in Santiago for contravention of Article 6,
paragraph b) of the law of State Security 12.927.[4]
The same day, Judge Rafael Huerta was named Supreme Court Judge [Ministro
de Fuero] to establish the facts that gave rise to the proceedings.

22. On
the same day, April 13, 1999, Judge Huerta, as a precautionary measure,
ordered the seizure of all existing copies and banned the republishing
of the book, in accordance with the terms of Articles 16 (1) and 30 of
the Law of State Security.[5]
Consequently, on April 14, with the help of the police force, all the
copies that were for sale in the bookshops of Santiago were seized,
along with 1,141 copies held by the publishers in their warehouses.

23. On
June 16, 1999, as part of the same proceedings, Messrs. Bartolo Ortiz
and Carlos Orellana, directors of the publishing company Editorial
Planeta de Chile, were arrested. They were both released two days later
and their case dismissed on July 29, 1999.

24.
Journalist Matus Acuña left Chile on the same day, April 13, 1999, for
fear of arrest. Mrs. Matus was called to testify on May 6, 1999, and was
subsequently declared in contempt of court on May 14, 1999, because she
did not appear before the court to testify.

25.
During the same month of April 1999, members of the government and
opposition put forward a draft law to modify the Law of State Security,
and proposed revoking the definition of contempt, contained in Article
6(b) and the modification of Article 16 of the same law, that was used
to prohibit publications.

26. On
November 10, 2000, as part of the proceedings opened following the
publication of the “Black Book”, an order was issued for the
apprehension of Alejandra Marcela Matus Acuña.

27. On
May 18, 2001, Law 19.733 was published in Chile, and this revoked,
amongst others, Articles 6(b) and 16 of the Law of State Security, that
had provided grounds for the case taken against Mrs. Matus Acuña. The
representatives of the alleged victim on June 2, 2001, requested that
her case should be dismissed, and the order for her apprehension
rescinded. This request was granted partially on June 29 of the same
year when the partial definitive dismissal was issued with regard to the
provisions of the Law of State Security, but leaving open the
possibility of trial under other laws of contempt. At the same time, the
requests for the suspension of the apprehension order and for the
lifting of the ban on circulating the book were turned down until such
time as the Court of Appeal should confirm the finding of the partial
dismissal.

28. Once
this finding had been appealed, the order for the apprehension of Mrs.
Matus was rescinded on July 6, 2001.

29.
However, the Court of Appeal of Santiago on July 25, 2001, declared
inadmissible the protective remedy intended to lift the ban on
circulating the book. The book therefore continued to be banned. On
September 29, 2001, the representatives of Mrs. Matus Acuña again asked
the judge in charge of the case to order an end to the seizure of the
book, which took place on October 19, 2001.

30.
Although the State made several presentations to the Commission
regarding this case, at no time did it dispute the facts as detailed by
the petitioners. In this regard, the Commission considers that this
amounts to an assumption of silence concerning the facts of the case.
The Commission has already pronounced with regard to the silence of the
State, quoting jurisprudence of the Inter-American Court of Human Rights
that states that “the silence of the accused…may be interpreted as an
acknowledgment of the truth of the allegations, so long as the contrary
is not indicated by the record or is not compelled as a matter of law,”[6]
which is reaffirmed by Article 39 of the Rules of Procedure of the
Commission.[7]
Bearing in mind that in its replies the State has not contested the
facts, and that there are no records on file that in any way detract
from what the petitioners have said, the Commission considers the events
described by the petitioners to be true.

V. CONSIDERATION
OF THE MERITS

31. The
Commission will examine whether in the present case the State of Chile
has infringed the rights enshrined in Articles 1(1), 2, 13, and 21 of
the American Convention.

A. The right to impart information and ideas of all
kinds without prior censorship

32.
Article 13 of the American Convention recognizes the right of everyone
to freedom of expression as follows:

1. Everyone
has the right to freedom of thought and expression. This right includes
freedom to seek, receive, and impart information and ideas of all kinds,
regardless of frontiers, either orally, in writing, in print, in the
form of art, or through any other medium of one's choice.

2. The
exercise of the right provided for in the foregoing paragraph shall not
be subject to prior censorship but shall be subject to subsequent
imposition of liability, which shall be expressly established by law to
the extent necessary to ensure:

a. respect
for the rights or reputations of others; or

b. the
protection of national security, public order, or public health or
morals.

3. The right
of expression may not be restricted by indirect methods or means, such
as the abuse of government or private controls over newsprint, radio
broadcasting frequencies, or equipment used in the dissemination of
information, or by any other means tending to impede the communication
and circulation of ideas and opinions.

4.
Notwithstanding the provisions of paragraph 2 above, public
entertainments may be subject by law to prior censorship for the sole
purpose of regulating access to them for the moral protection of
childhood and adolescence.

5. Any
propaganda for war and any advocacy of national, racial, or religious
hatred that constitute incitements to lawless violence or to any other
similar action against any person or group of persons on any grounds
including those of race, color, religion, language, or national origin
shall be considered as offenses punishable by law.

33.
Article 13 of the American Conventionprohibits prior censorship.[8]
The Court understands that the duty not to interfere with the enjoyment
of the right to enjoy freedom of expression extends to the free
circulation of information, ideas, and the exhibition of works of art
that may or may not be approved by state authorities.[9]
In its Advisory Opinion No. 5, the Court interpreted that “Article 13(2)
stipulates in the first place that prior censorship is always
incompatible with the full enjoyment of the rights listed in Article 13,
but for the exception provided for in subparagraph 4 dealing with public
entertainments, even if the alleged purpose of such prior censorship is
to prevent abuses of freedom of expression. In this area any preventive
measure inevitably amounts to an infringement of the freedom guaranteed
by the Convention.”[10]

34. The
Commission, for its part, has found along similar lines: The Declaration
of Principles on Freedom of Expression[11]
states in Principle 5 that prior censorship must be prohibited by law,
and furthermore, has recently upheld:

Article 13 of the
American Convention contains a virtually complete ban on prior
censorship, which is not found in other international human rights
instrument and which indicates the high regard the drafters of the
Convention had for the right to freedom of expression.[12]

35.
Other international courts have found along similar lines, finding that
prior censorship implies restricting or preventing expression before it
has been circulated, so preventing not only the individual whose
expression has been censored, but also all of society, from exercising
their right to the information. In other words, prior censorship
produces “a radical suspension of freedom of expression through
preventing the free circulation of information, ideas, opinions, or
news.” As has been stated previously, this constitutes a radical
violation not only of the right of each person to express himself, but
also of the right of every person to be well informed, and therefore
constitutes one of the basic conditions of a democratic society.[13]

36.
Article 16 of the Chilean Law of State Security stated that “if a crime
is committed against the security of the State either in print, radio or
on the television…the court may order the immediate seizure of all
material which contains evidence of a public offense punishable under
this law.” Based on this legal provision, in this case, the Trial Judge
in the case brought against the journalist Matus Acuña, issued a seizure
warrant to order the confiscation of all the existing copies of the
book, and in addition, to prohibit its further publication. This
judicial process prevented the free circulation of the book before the
existence of any alleged crime had been proved.

37.
Given these circumstances, the Commission is of the opinion that this
judicial measure amounted to an act of prior censorship, in violation of
the freedom of expression[14]
of Alejandra Marcela Matus Acuña and that Article 16 of the Law of State
Security, in as far as it provided the basis for the imposition of this
illegitimate restriction, was incompatible with Article 13 of the
American Convention.”[15]

B.
The Right to Access to Information

38. In
accordance with Article 13 of the Convention, freedom of expression not
only covers the right of a person to express his own ideas and opinions,
but also the right and freedom to seek and receive information and ideas
of all kinds. Therefore, as the Inter-American Court has stated, “when
an individual’s freedom of expression in unlawfully restricted, it is
not only the right of that individual that is being violated, but also
the right of all others to “receive” information and ideas. The right
protected by Article 13 consequently has a special scope and character,
which are evidenced by the dual aspect of freedom of expression. It
requires, on the one hand, that no one be arbitrarily limited or impeded
in expressing his own thoughts. In that sense, it is a right that
belongs to each individual. Its second aspect, on the other hand,
implies a collective right to receive any information whatsoever and to
have access to the thoughts expressed by others.”16

C. The
Compatibility of Article 6(b) of the Law of State Security with the
American Convention

40. The
Commission considers that Article 6(b) of the Law of State Security[16],
as applied to the journalist Alejandra Matus Acuña was in violation of
Article 13 of the American Convention. The Office of the Special
Rapporteur for Freedom of Expression has also indicated on numerous
occasions that it amounts to a “law of contempt”[17]
in as much as it fits into a class of legislation that penalizes any
expression that offends, insults, or threatens a public functionary in
the exercise of his official functions.”

41. In
its 1994 annual report, the Commission examined the compatibility of
laws of contempt with the American Convention[18]
and concluded that this class of law is not compatible with the right to
freedom of expression. Consequently, the Commission recommended to the
member states of the OAS that they should be revoked.

42. The
Commission notes with approval that the above mentioned article of the
Law of State Security has been revoked and calls on the State to
continue its efforts to revoke the remaining provisions of domestic law
that are incompatible with its obligations under the American
Convention.

D. Obligation
to Guarantee the Rights Protected under the Convention and to give
effect in domestic law to the Provisions of the American Convention on
Human Rights

43.
Article 1(1) of the American Convention lays down: “The States Parties
to this Convention undertake to respect the rights and freedoms
recognized herein and to ensure to all persons subject to their
jurisdiction the free and full exercise of those rights and freedoms,
without any discrimination for reasons of race, color, sex, language,
religion, political or other opinion, national or social origin,
economic status, birth, or any other social condition.”

44.
Likewise, Article 2 of the Convention lays down that: “Where the
exercise of any of the rights or freedoms referred to in Article 1 is
not already ensured by legislative or other provisions, the States
Parties undertake to adopt, in accordance with their constitutional
processes and the provisions of this Convention, such legislative or
other measures as may be necessary to give effect to those rights or
freedoms.”

45. In
this respect, the Inter-American Court stated that “the general
obligations of the State, established in Article 2 of the Convention,
include the adoption of measures to suppress laws and practices of any
kind that imply a violation of the guarantees established in the
Convention, and also the adoption of laws and the implementation of
practices leading to the effective observance of the said guarantees.”[19]

46. In
the case in question, as has been indicated, the provisions of the Law
of State Security which permitted the seizure of the book “The Black
Book of Chilean Justice” and which provided the grounds for the legal
case against its author and the directors of Editorial Planeta, were
clearly incompatible with Article 13 of the American Convention.

47. It
should be emphasized in this respect that by law 19.733, the State of
Chile revoked Articles 6(b) and 16 of the Law of State Security. With
this new legislation, and with regard to this particular case[20],
the State of Chile has adopted the legal measures necessary to give
effect in domestic law to Article 13 of the American Convention.

48.
However, the Commission considers that the State of Chile is responsible
for not having complied at the appropriate time with its obligation to
guarantee the effective enjoyment of the right enshrined in Article 13
of the Convention, and therefore has violated Articles 1 and 2. In
effect, the failure to comply on the part of the Chilean State has
permitted the continuation of the illegitimate restrictions on the right
to freedom of expression for more than two and a half years. During this
period, the provisions in force made it possible to prevent the free
circulation of the book and consequently infringed the right to freedom
of expression of both the author and Chilean society.

E. The
Right to Private Property

49. The
petitioner alleges that the State of Chile has also infringed her right
to private property. He claims that the right to intellectual property
of Alejandra Marcela Matus Acuña of “The Black Book of Chilean Justice”
should be considered an asset, and that, as such, should be protected by
Article 21 of the American Convention. He states that the seizure
prevented the marketing of the book “and so deprived the author of the
legitimate enjoyment of the dues deriving from the sale of her work,”
and clarifies that “no claim is made for the violation of the right of
property of Editorial Planeta with regard to specific physical goods
(the books themselves), but for the objective fact of having prevented
the sale of an intellectual work, and consequently, the enjoyment of the
right to its intellectual property by the seizure of the physical goods
and by the existence of an order of seizure which made it judicially
impossible to replace the books seized from the market.”

50.
Likewise, the Government claims that the journalist’s right to
intellectual property “goes beyond the protective scope of the American
Convention on Human Rights.” In this respect it claims that “the copies
confiscated or seized are not the property of the author of the literary
work – Alejandra Matus Acuña – but of the publishing company (Editorial
Planeta) marketing them. In point of fact, the books were seized from
the company’s warehouses. Second, the confiscation or seizure is a
measure adopted within the framework of a judicial process and is in
accordance with provisions currently in effect and therefore is not an
arbitrary or abusive measure but one made legitimate by legal process.
Third, the seizure order, is a measure that does not affect ownership
but is a precautionary measure that temporarily withdraws from the
market those goods that are the subject of litigation or that provide
proof or grounds for a specific judicial action, in accordance with the
social interest determined by a judicial resolution.”

51.
Article 21 of the American Convention guarantees the right of persons to
private property, which implies the right to dispose of their goods in
any legal way, to possess them, use them, and prevent any other person
from interfering with their enjoyment of this right. This right covers
all a person’s proprietary assets, that is to say, those that have to do
with material goods as well as intangible goods that are capable of
value (susceptible de valor).[21]
The Commission therefore considers that the right of the author to
market her work and to receive her share of the earnings derived from
its sale is protected by Article 21 of the American Convention.

52. The
journalist Alejandra Matus Acuña signed a contract with the publishing
company under which she was entitled to a percentage of the sale price
of the book. This was to have been paid to the author according to the
sale records, within 60 days of each statement.[22]

53. The
order for seizure of the book provided for the confiscation of all
existing copies and prohibited its republishing. This prevented the
marketing of the book and liquidation of earnings and the subsequent
payment of royalties assigned to the author under the terms of her
contract with Editorial Planeta. Consequently, the journalist Matus
Acuña was prevented from exercising one of the fundamental attributes of
her right to property: dispose freely of her work. Furthermore, as has
been demonstrated, the seizure order was based on a law that violated
the right to freedom of expression, the revoked Article 16 of the Law of
State Security. In these circumstances, the Commission considers that
the journalist Matus Acuña has suffered an illegitimate interference of
her right to private property and that the State of Chile is responsible
for the violation of Article 21 of the American Convention.

VI.
ACTS SUBSEQUENT TO THE REPORT Nº 46/03

54. The
Commission approved the Report on the Merits No 46/03 on the present
case on October 8, 2003, during its 118th Regular Session.
This report, with the recommendations of the Commission was transmitted
to the State of Chile on January 5, 2004, and a period of two months was
granted for it to comply with the recommendations, counted from the date
of sending the report. When this period was complete, the State made no
report to the IACHR regarding its compliance with the recommendations
made by the Commission. Therefore the Commission notified the
petitioners of the adoption of the aforementioned report on the merits
and requested an opinion regarding the possible submission of the case
to the Inter-American Court of Human Rights. On January 22, 2004, the
petitioners responded and requested the IACHR to submit the case for the
consideration of the Inter-American Court of Human Rights on the basis
of the legal grounds indicated.

55. In
accordance with the stipulations of Article 51(1) of the Convention, it
is for the Commission to determine, during this stage of the process, if
the State has fulfilled its obligations. In this respect, the IACHR
observes that to date, the Chilean State has not reported on any action
that it might have taken in relation to complying with the
recommendations of the IACHR in the report on the merits of the present
case. On September 20, 2004, the Commission was informed by Mrs. Matus
that the State has not complied with Report No. 46/03.

56.
Furthermore, the IACHR wishes to report that given the specific
circumstances of the present case that include the promulgation of Law
19.733 which revoked amongst others, Articles 6b), and 16 of the Law of
State Security that provided the legal basis for the case taken against
Mrs. Matus Acuña, the Inter-American Commission, in accordance with the
provisions of its Rules of Procedure, decided by absolute vote of the
majority of its members not to submit the present case to the
Inter-American Court of Human Rights.

VII.
CONCLUSIONS

57.
Therefore, the Inter-American Commission concludes that Marcela
Alejandra Matus Acuña was the victim of censorship on account of her
“Black Book of Chilean Justice”, and that her books were seized by
judicial order and were out of circulation for more than two years.
Furthermore, Mrs. Matus Acuña was subjected to a judicial process that
caused her to leave her country so as not to be imprisoned. Finally, the
Commission finds that Chilean society was deprived of its right to
access to information, in particular, the persons named in paragraph 39
supra.

58. The
facts established in the present report constitute violations of
Articles 13 and 21 of the American Convention and are in violation of
the duty to respect and ensure enshrined in Article 1(1) of the American
Convention, and the duty to give effect in domestic law to the
obligations assumed by the State, in accordance with Article 2 of the
same Convention.

59. The
Commission notes with pleasure that the State of Chile has revoked
articles 6b) and 16 of the Law of State Security that, as has been
demonstrated, are incompatible with Article 13 of the American
Convention on Human Rights and exhorts the State of Chile to continue
its reform of legislation that is incompatible with the abovementioned
article.

VIII.
RECOMMENDATION

60.
Based on the examination and conclusions of the present report, the
Inter-American Commission on Human Rights conveys the following
recommendation to the State of Chile: To make adequate compensation to
Alejandra Matus Acuña for the consequences of the violations of the
rights to freedom of expression and to property, to the prejudice of
journalist Alejandra Matus Acuña.

IX.
PUBLICATION

61. On
October 8, 2003, the Commission approved the preliminary report, Report
No. 46/03, in accordance with Article 51 of the American Convention.

62. On
January 5, 2004, the Commission transmitted this report to the Chilean
State and to the petitioners, in accordance with the provisions of
Article 51(1) of the American Convention and Article 45(1) of the Rules
of Procedure of the Commission, and granted a period of one month for
the State to comply with the above-mentioned recommendations. Since this
period expired, the Commission has received no response from the State
regarding this matter.

63. On
February 27, 2004, during the 119th Regular Session, the Commission
decided by unanimous vote of the six voting members, not to put the case
before the Court and to proceed according to the Rules of Procedure.

64. By
virtue of the lack of a response from the State, the Commission, during
its one hundredth and twenty-second regular session approved Report No.
44/05, the final version of the report, in accordance with Article 51(1)
and Article 45(1) of the Rules of Procedure of the Commission. The final
version was transmitted to the Chilean State and to the petitioners on
April 29, 2005, granting a further period of one month to the State in
which to comply with the recommendations, in accordance with Article
51(2) of the American Convention and Article 45(2) of the Rules of
Procedure. When this period expired, the Commission had again received
no reply from the State.

65. By
virtue of the abovementioned conclusions and in accordance with Articles
51(3) of the American Convention and Article 45 of its Rules of
Procedure, the Commission decided to re-state the conclusions and
recommendation in paragraphs 57-60, to publish this report and to
include it in its Annual Report to the General Assembly of the OAS. In
accordance with its mandate, the Commission will continue to evaluate
the steps taken by the Chilean State in relation to the abovementioned
recommendation, until such time as there is full compliance.

Done and
signed at the headquarters of the Inter-American Commission on Human
Rights, in Washington, D.C., on the 24th day of October,
2005. (Signed): Clare K. Roberts, President; Susana Villarán, First Vice
President; Paulo Sérgio Pinheiro, Second Vice President; Commisioners
Evelio Fernández Arévalos, Freddy Gutiérrez, and Florentín Meléndez.

[1]
Commission member José Zalaquett Daher, from Chile, took no part
in the review or voting on this case in accordance with Article
17(2)(a) of the Rules of Procedure of the IACHR.

[3]
The lawyers who signed the petition as victims were Jorge Bofill
Gensch, Juan Ignacio Correa, Julián López Masle, Claudio Moraga
Kienner, Javier Ovalle Andrade and Pablo Ruíz Tagle Víal, the
last of these being the President of AALP.

[4]
Article 6 of the Law of State Security states: Any person who
publicly offends the flag, the coat of arms, the name of the
mother country, or the national anthem and any person who
defames, insults, or slanders the President of the Republic,
Ministers of State, Senators, or Deputies, members of the High
Courts of Justice, the Treasury Inspector of the Republic,
Commanders-in-Chief of the Armed Forces, or Director General of
the Police, whether or not the defamation, insult, or slander is
committed in connection with the offended party’s official
function.

1)
If an offense against the security of the State is committed in
print, on the radio, or on the television, the competent court
can suspend publication of up to ten editions of a guilty
newspaper or magazine and up to ten days’ transmissions of the
offending radio or television channel. In serious cases, the
Court without prejudice may order the immediate seizure of any
broadcast that contains any public offense that is punishable
under this law. The court may exercise similar powers with
regard to any another edition that may appear to have been
produced in order to replace the one sanctioned under the terms
of this provision.

Article 30 of
the same law stated:

In all
proceedings undertaken in accordance with this law, the first
step of the trial judge must be to order, without prejudice to
the provisions of Article 7 of the Code of Criminal Proceedings,
that all the printed matter, books, pamphlets, disks, films,
tapes, and any object that might have been used to commit the
crime, be collected and put at the disposition of the Court.

[8]
The only exception to the prohibition of prior censorship is for
the regulation of access of underage minors to public
entertainments for their moral protection. See Article 13,
paragraph 4. The present case does not fall within this
exception.

[15]
See similarly, IACHR Annual Report 1999, Report of the Office of
the Special Rapporteur for Freedom of Expression, April 13,
2000, Chapter II, page 30. The Rapporteur maintains that this
norm is incompatible with the Convention and considers that
“this article confers wide discretional faculties on the
instructing judge by allowing him to order the seizure of
publications or other means of expression merely by claiming or
stating that ‘it contains evidence of a public offense’…and this
in turn becomes an established norm that allows or permits
judges to prior censor a publication.”

[16]
Article 6(b) of Law 12.927 Domestic Security of the State,
states that:

An offense
against public order is committed by: Any person who publicly
offends the flag, the coat of arms, the name of the mother
country, or the national anthem, and any person who defames,
insults, or slanders the President of the Republic, Ministers of
State, Senators, or Deputies, members of the High Courts of
Justice, the Treasury Inspector of the Republic,
Commanders-in-Chief of the Armed Forces, or Director General of
the Police, whether or not the defamation, insult, or slander is
committed in connection with the offended party’s official
function.

[17]
See IACHR, 1998 Annual Report, Report of the Office of the
Special Rapporteur for Freedom of Expression, April 16, 1999,
Chapter IV, page 4, note 62, and IACHR, 1999 Annual Report,
Report of the Office of the Special Rapporteur for Freedom of
Expression, April 13, 2000, Chapter II, pages 29 and 30.

[18]
IACHR, Report on the Compatibility of Laws of Contempt with the
American Convention on Human Rights, OAS/ser L/VII.88, Doc. 9,
rev (1995), pages 210 to 223. Annex D.

[20]
As has been observed by the Office of the Special Rapporteur for
Freedom of Expression, the crime of contempt is still on the
statute books in Chile, in the Penal Code as well as in the Code
of Military Justice. See IACHR, 2002 Annual Report, Report from
the Office of the Special Rapporteur for Freedom of Expression,
March 7, 2002, Chapter V, page 9.